You know there's something wrong with an industry when legislation is the most important thing on its agenda. A good example was last month's introduction of a bill in the US that is likely to make file sharing illegal, which coincided with a hearing on the future of peer-to-peer (P2P) networks held by the Competition, Foreign Commerce and Infrastructure committee. These two initiatives seem brought about by lobbies that want to keep everything the same in the post-internet world--primarily record labels and film companies.
On the other side of the equation the Personal Technology Freedom Coalition recently signed up high profile supporters in favor of the Digital Media Consumers' Rights Act, which would amend a controversial part of the Digital Millennium Copyright Act (DMCA), which says that bypassing copy protection is of itself illegal, regardless of whether or not this is done to illegally copy copyrighted works.
At a tangent to both these activities two learned academics, William Fisher, a professor at Harvard Law School and an author on the topic, and Kembrew McLeod, an assistant professor of communication studies at the University of Iowa, also an author on the subject, both wrote in the New York Times praising the use of levies over technological remedies for compensating, rather than halting, the effects of piracy.
It is clear that use of levies is enormously problematic as it stands, with collections agencies deciding who gets the contributions, against some distribution rules that relate directly to the amounts of money that are already earned elsewhere. As such, it is a force for the status quo and will always subvert change and bolster existing monopolies or cartels, such as those we have operating in recorded music and film making.
Meanwhile in Europe, a group in the Netherlands was publishing a new creative common approach to publishing works, which allows them to be freely distributed without the authors losing any rights. This is an echo of movements already made in Finland and Germany, based on the work of another US professor, Lawrence Lessig, law professor at California's Stanford University.
Finally, major record label Universal Music Group has decided to phase out the sale of copy protected CDs in Germany. Why? Because it is worried that consumers and consumer groups will take it to court when protected CDs do not play on some hi-fi devices. This also echoes cases that have been brought elsewhere in Europe.
You can argue about which of these is the most worrying or which way the legal outcomes should fall. But these movements hit the headlines and new business models that make the best of the internet do not.
The Bill being brought by Senator Orrin Hatch, chairman of the Senate Judiciary Committee--the Inducing Infringement of Copyrights Act of 2004--says it is there to allow creative artists to sue corporations that profit by encouraging children, teenagers and others to commit illegal or criminal acts of copyright infringement.
For creative artists read record company lobby, who will be able to sue a file sharing service that doesn't do its utmost to dissuade its users (mostly children?) from engaging in copyright theft.
There is real hypocrisy here. We are told to believe that the moral bankruptcy of the (US) nation rests on stopping children from dealing with file sharing services to break the law--the same children who have to watch press reports that show citizens overseas being tortured by their own compatriots. However, just because an idea is motivated by hypocrisy doesn't make it necessarily wrong.
"This carefully drafted, bipartisan bill would simply confirm that existing law should allow artists to bring civil actions against parties who intend to induce others to infringe copyrights," said Hatch as he lodged the bill. He wants to introduce a new law to force the judiciary to interpret the old law the way he would. "These corporations know better than to break the law themselves, so they profit from infringement by inducing users of their software to do the 'dirty work' of actually breaking the law."
This has all come about because under US law it turned out to be possible to sue Napster because it was clearly encouraging copyright abuse, but not Morpheus and Grokster, which were the next in line, because they made no clearly overt suggestions to their users to break the law.
Much the same can be said of Kazaa. An appeal is waiting to be heard on the subject in the US Court of Appeals in San Francisco, aiming to overturn the April 2003 decision.
Perhaps it's time to realize that both sides are right in this equation.
On one hand, in the past music companies manipulated music so that consumers had to buy CD albums and not individual tracks, artificially increasing profits through bundling. On the other hand, ignoring the fact that file sharing networks are used to break the law just so millions can have free music and a handful of file sharing networks can make little money, also seems unfair. So perhaps record companies should be enforced to remain 'unbundled' as they are under services like iTunes, and also make the file sharers clean up their copyright act, or be taken to court.
Such a decision might stop the requirement that harsh copy protection that limits personal freedom needs to go into music CDs at all, because without file sharing, most piracy evaporates.
This might also take away the need to keep the Digital Millennium Copyright Act as it is, and it could be submitted for change so that bypassing copy protection was no longer illegal, because it can be used for little more than personal use, if file sharing is eliminated from the illegal copyright arena.
There is a lot of rhetoric about how the content business accommodated technological improvements of the past without making new laws. It is usually argued that just blocking them was never a good option and that accommodating them somehow was always the best outcome. The use of VHS and DVD players is a case in point. The film industry first tried to ban them and failed, and then decided to adopt them, a shift which has now brought the film industry more revenue than any other.
But in some way file sharing has served its purpose in that it has given a short, sharp and painful shock to the recording business, which has led to it allowing online music services the flexibility to try to come up with something better. Granted, if file sharing went away, these online music services might find themselves pushed to be mere copies of the retail environment, where consumers are forced to buy albums and where there is nothing to stop recurring, incremental prices increases because there is so little competition.
Fixing one side of the equation without fixing the other will lead us back to status quo, but since antitrust campaigns against content companies have been crushed due to the current climate, there are no counter balances that will stop the content companies returning to a monopolistic power base once file sharing is dead. There needs to be.
COPYRIGHT 2004 Rethink Research Associates
COPYRIGHT 2004 Gale Group
